https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2180

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E160 OF 2024** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **GRACE KERUBO OGATO……….....………………………....CLAIMANT** **VS** **CITY LEAD COMPANY LIMITED……………………1ST RESPONDENT** **PROF. JULIUS O. OYUGI…………………………….2ND RESPONDENT** **JUDGMENT** 1. The Claimant instituted this claim vide a Statement of Claim dated 29th February 2024 and prays against the Respondent: 2. *A declaration that the Claimant’s dismissal from the Respondent’s service was unfair and unlawful.* 3. *An order for the Respondent to pay the Claimant her terminal dues and compensatory damages totalling to Kenya Shillings Two Hundred and Thirty - Eight Thousand Seven Hundred (Kshs. 238,700.00/-) with interest thereon.* 4. *The Respondent to pay Claimant costs of this cause plus interest thereon.* 5. *Any other prayer the court may deem fit to issue.* *In the ALTERNATIVE to the prayers (i) - (iii);* 1. *a declaration that the dismissal was unlawful and the Claimant be reinstated to work.* 2. *Payment of salary arrears since October, 2023 when she was unfairly dismissed till reinstatement.* 3. *Compensatory damages Kenya Shillings Two Hundred and Thirty-Eight Thousand Seven Hundred (Kshs. 238,700.00/-) with interest thereon suffered during the period she was dismissed.* **Claimant’s Case** 1. The Claimant avers that she was employed by the 1st Respondent as a Cleaner with effect from 1st November 2019, and that she served the Respondent continuously, diligently and to the Respondent's satisfaction for a period of five (5) years. Her last monthly salary was Kshs. 15,500. 2. It is her case that throughout the duration of her employment, the Respondents never remitted her NSSF and NHIF contributions to the relevant bodies as statutorily mandated, and neither did they pay her service dues for each complete year worked. 3. The Claimant states that on 20th September, 2023, she proceeded for her annual leave and was expected to resume duty on 11th October 2023. However, on 5th October 2023, she received a call from one Alfred Aguko Gari, the Finance Manager, who notified her to visit a cybercafé and check her electronic mail. 4. She states that the email notified her that the company had extended her leave until 2nd November 2023. She thus called Alfred Aguko Gari to inquire why her leave days were being extended but received no answer. 5. The Claimant contends that she nonetheless visited the work premises on 11th October 2023, being the date she was originally meant to resume duty, and worked the whole day, and similarly worked on 12th November 2023. 6. She avers that she reported to work again on 13th October 2023, and that at around 11.00 a.m. Alfred Aguko Gari and one Winnie, who also worked there, told her that she was supposed to be on leave and not working. She asked them why she was being forced to proceed on forced leave but did not receive any answer. 7. It is the Claimant's case that she was thereafter handed a letter dated 13th October 2023, denying her access into the UNITID Building where the 1st Respondent's Company was located and where she worked; the said letter was signed by the 2nd Respondent. 8. The Claimant avers that she was further notified to await official communication, and on 16th October, 2023, she received a letter instructing her to proceed on annual leave with effect from 16th October, 2023. The stated reason being that there had been numerous complaints about her work ethic, and that she was directed to hand over everything to one Nancy Chepkoech Kerich, the supervisor. 9. The Claimant further avers that on 11th November, 2023, she received a retirement notice instructing her to collect her dues on or before 31st December, 2023. 10. It is her case that this course of action, taken cumulatively, amounted to summary dismissal from employment, which dismissal was unlawful and unfair for want of due process, in that she was not issued with any notice, was never afforded a disciplinary hearing, and that no plausible reason was given prior to the decision to summarily dismiss her. 11. She contends that there was, and is, no proof of any gross misconduct on her part that would justify her summary dismissal, and that the allegations levelled against her are purely ill-motivated and malicious, calculated only to justify the 2nd Respondent's decision to summarily dismiss her. It is her averment that had the Respondents accorded her a fair hearing, they would have found no grounds upon which to summarily dismiss her. 12. The Claimant avers that as a result of the dismissal, she suffered an abrupt loss of income and has been unable to meet her continuing financial obligations. **1st Respondent’s Case** 1. In opposition to the Claim, the 1st Respondent filed a Statement of Response dated 20th June 2024. 2. The 1st Respondent avers that save for what is expressly admitted, it denies each and every allegation contained in the Claim. 3. The 1st Respondent contends that the Claimant's claim as filed is false and intentionally misleading, and that the Claimant has misrepresented the facts; the Claimant's dismissal was warranted and justified, and it was procedurally fair and in accordance with the applicable law and her terms of employment; the Claim is false, misleading, misadvised and brought in bad faith; and the Claimant is not entitled to the orders sought. 4. The 1st Respondent avers that the Claimant is non-suited, and the Memorandum of Claim discloses no reasonable cause of action, therefore, the suit be struck out in *limine* with costs. It contends that the suit is an action brought in despair, a fraud upon the Court, and a gross abuse of the court process founded on non-disclosure of material evidence. 5. The 1st Respondent admits that the Claimant was employed on 1st November 2019, as a cleaner earning a consolidated monthly salary of Kshs. 15,500; and it remitted all statutory payments to the relevant statutory bodies save for KRA, from which the Claimant was exempted. 6. It avers that the Claimant was, at the time of her employment, issued with the Human Resource Management Policy Manual, which governs various aspects of employment. Clause 9.6 of the Manual provides that employees are required to retire upon attaining the age of 60 years, with the Human Resources Department obligated to notify employees of their impending retirement at least one month in advance. 7. It is the 1st Respondent's case that through a letter dated 16th October 2023, the Claimant was informed of complaints from customers regarding her work ethic, and that her leave was consequently extended, and duly paid. 8. It avers that the Claimant was equally close to attaining the retirement age, and that in keeping with the Policy, she was notified vide a letter dated 11th November 2023 of her retirement. The letter further indicated the benefits due to her, namely severance pay, leave days and one month's notice pay, in line with the Policy and the Employment Act. 9. The 1st Respondent states that the Claimant was paid her salary for October, November and December 2023, but refused to accept payment of her severance dues together with the one month's pay in lieu of notice as set out in the letter dated 11th November 2023. The Claimant had no leave days pending. 10. The 1st Respondent denies that the Claimant was maliciously and/or unfairly terminated from employment, and denies each particular of malice, unlawful termination, breach of the rules of natural justice and bias, putting the Claimant to strict proof thereof. 11. It avers that the Claimant's employment was stopped on account of her having attained the retirement age, for a fair reason and in accordance with fair procedure, and that the claim is accordingly without basis in fact or in law, and an abuse of the court process. It further contends that the Claimant is not entitled to any of the reliefs sought. 12. The 1st Respondent also denies the jurisdiction of the Court, contending that the Claimant earns less than Kshs. 80,000 gross salary, and that entertaining the suit would be contrary to Gazette Notice No. 6024 (Vol. CXX No. 74) dated 22nd June, 2018, which it contends mandates the Court to only handle matters where the claimant earns a gross salary of over Kshs. 80,000. **2nd Respondent’s Case** 1. In opposition to the claim, the 2nd Respondent filed a Memorandum of Response dated 8th May 2025. 2. The 2nd Respondent denies the entire claim, particularly paragraphs 4 to 18 thereof, and puts the Claimant to strict proof. In the alternative, he avers that the Claimant was at all material times an employee of the 1st Respondent, as all her appointment letters, salaries, benefits and contract of employment were with the 1st Respondent, and not with him. 3. He contends that it is the 1st Respondent who issued the Claimant's appointment and termination letters, determined her terms and conditions of service, paid her salary and benefits, determined when she was to take leave and off-days, deducted and remitted her statutory dues, controlled and disciplined her, issued notices and communication to her, and ultimately dismissed her from employment. 4. The 2nd Respondent admits paragraphs 3 and 10 of the Claim, save that he avers that the UNITID Building is a private and sensitive building housing the Institute of Tropical and Infectious Diseases, a centre of excellence in research, training and practice in tropical and infectious diseases. 5. He avers that UNITID, as such a centre, has the sole mandate and discretion to control entry into and exit from the building, for reasons including prevention of unauthorized access on security, health and safety grounds, protection of sensitive data, and the deployment of Role-Based Access Control over the building, and that the building is off-limits to the Claimant regardless of the means of entry. 6. It is the 2nd Respondent case that the demand, Notice of Intention to Sue, and the Claim itself were actuated by ill motive and bad faith, and constitute an unmerited claim against him. 7. He maintains that the entire Memorandum of Claim is null and void *ab initio* and an abuse of the court process, and ought to be struck out and/or dismissed with costs. He admits the jurisdiction of the Court. **Evidence in Court** 1. The Claimant (CW1) adopted her amended witness statement dated 29th February 2024 as her evidence in chief and produced her list of documents dated even date as her exhibits. 2. During cross-examination, CW1 testified that she had attained 60 years and had been notified of her retirement. She requested for extension of her employment for a period of 2 years, however, it was not granted 3. She testified that she was notified of her retirement one month prior. After the retirement, she did not clear with the 1st Respondent but chose to seek legal assistance 4. CW1 testified that the 2nd Respondent denied her access to the building but she has not demanded anything against him. 5. The Respondents’ witness, the 2nd Respondent herein (RW1), he adopted his witness statement dated 23rd October 2024 as his evidence in chief and produced his list of documents dated 8th May 2024 as his exhibits. 6. Upon cross-examination, RW1 testified that he did not deny the Claimant access to UNITID building, he only wrote the letter because in September 2024, the Claimant’s supervisor, Winnie Cherotich, had been sent on leave pending retirement. 7. He testified that the building is high security because it stores dangerous things and anyone who does not work cannot be allowed entry. 8. The Respondents’ second witness, Prisca Sambu (RW2), adopted his witness statement dated 22nd July 2024 as her evidence in chief and produced the list of documents dated even date as her exhibits. 9. RW2 testified that there had been several complaints about the Claimant’s work ethics but no evidence has been produced before court. 10. She testified that the Claimant’s salary was Kshs. 15,500 less NHIF and NSSF but the Respondent did not produce any evidence that the deductions were paid to any authority. **Claimant’s Submissions** 1. On jurisdiction, the Claimant submitted that although the matter was initially filed at the Chief Magistrate's Court and later transferred to the ELRC by the registry for reasons not disclosed to her beyond court backlog, this Court remains properly seized of the matter. She relied on [***Nyambu v Fanaka [2026] KEELRC 82 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/82/eng%402026-01-22), where it was held that Gazette Notice No. 6024 of 22nd June, 2018 was intended only to extend access to justice by granting magistrates jurisdiction over employment claims under Kshs. 80,000, and did not thereby divest the ELRC of its original jurisdiction over employment and labour relations disputes. 2. On unlawful termination, it was submitted that it is not in dispute that the Claimant was employed in November 2019 and served diligently until 2023, when she was dismissed under the guise of retirement. 3. The Claimant further submitted that no retirement age had ever been communicated to employees, and that the Human Resource Manual produced by the 1st Respondent was unknown to her prior to these proceedings, and the 1st Respondent's witness was a stranger to her. 4. It was argued that the decision to terminate her employment, and the 2nd Respondent's subsequent denial of entry, was punitive, unfair, unprocedural, and offended Article 41 of the Constitution and section 41 of the Employment Act, there being no valid reason for the purported retirement, particularly as it was effected while she was still on leave. 5. The Claimant submitted that she had an outstanding SACCO loan serviced through her salary for her children's university fees, and that the retirement was sprung on her without reason as a means of financial coercion. 6. The Claimant relied on sections 41, 43, 45, 47(5) and 74 of the Employment Act, submitting that an employer bears the burden of proving the reasons for termination and their validity once an employee has established that termination occurred, and that no notice to show cause or disciplinary hearing was ever accorded to her. She cited [***Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/225/eng%402017-11-03), where the Court of Appeal held that under section 47(5), while an employee bears the burden of proving termination and its unfairness, it is only thereafter that the employer is called upon to justify the grounds relied upon, failing which the termination is deemed unfair. 7. It is the Claimant’s submission that she was never summoned before any disciplinary committee to answer to the alleged complaints, which were never investigated or proved, and that no internal procedure on retirement had been laid down or applied fairly. 8. On terminal dues, the Claimant submitted that she is entitled to one month's salary in lieu of notice, service/gratuity pay for four years of service, and a certificate of service, together with compensatory damages at twelve months' gross salary for the unfair and unlawful dismissal. 9. In support thereof, she relied on [***Nation Media Group Limited v Munene [2025] KECA 114 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/114/eng%402025-01-24), where the Court of Appeal upheld an award of ten months' salary as compensation for unfair termination in addition to terminal dues; and on [***Momanyi v Attorney General & another [2012] KEHC 5446 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/5446/eng%402012-05-18), for the proposition that an employee may sue for wrongful termination irrespective of the length of service. 10. It is the Claimant’s submission that having proved illegal, irregular and bad-faith termination, she is entitled to gratuity for her four years of diligent service, compensatory damages for one year, and costs of the suit. **1st Respondent’s Submissions** 1. The Respondent submitted on four issues: whether this Honourable Court has jurisdiction to hear and determine this matter; whether the Claimant's retirement constituted unlawful or unfair termination of employment; whether the Claimant is entitled to terminal dues and/or compensatory damages; and costs of the suit. 2. On the first issue, the Respondent submitted that the Claimant's reliance on Gazette Notice No. 6024 of 22nd June, 2018 to found this Court's jurisdiction is misplaced. It argues that the Gazette Notice was issued pursuant to Section 29(3) of the Employment and Labour Relations Court Act and serves to designate Magistrates' Courts to hear employment disputes within specified pecuniary limits, and not to confer exclusive jurisdiction on the ELRC in every employment matter. 3. It is the 1st Respondent’s submission that the effect of the Gazette Notice is clear that Magistrates’ Courts were expressly granted jurisdiction to hear employment matters where the employee’s gross monthly salary falls within the prescribed pecuniary threshold. Since the Claimant earned a consolidated monthly salary of Kshs. 15,500, well below the Kshs. 80,000 threshold, the dispute falls within the jurisdiction of the Chief Magistrate's Court. 4. The 1st Respondent submitted that the mere fact that a matter has been filed before this Court does not, of itself, vest jurisdiction where none properly lies. Jurisdiction flows from the Constitution and statute and cannot be created by the unilateral act of a party choosing a particular forum. 5. It was submitted, without prejudice to this objection, that the 1st Respondent addressed the merits of the Claimant’s case in these submissions purely *ex abundanti cautela* and to avoid any inference that it has waived or abandoned its jurisdictional challenge. Its engagement with the merits should therefore not be construed as submission to the jurisdiction of this Court, but rather as a prudent and alternative response in the event the Court is minded to proceed to consider the substantive claim. 6. On unlawful/unfair termination, the 1st Respondent submitted that the characterization of the Claimant's exit as unlawful termination is misconceived, as she was retired, not dismissed. Reliance was placed on section 2 of the Employment Act, 2007, defining termination as cessation of employment at the employer's initiative for reasons unrelated to a disciplinary matter. 7. It is the 1st Respondent’s submission that retirement upon attaining the designated age is an entirely distinct category, rendering the Claimant's reliance on sections 41, 43, 45 and 47 of the Employment Act misplaced. 8. It was submitted that Clause 9.6 of the HR Manual was a pre-existing policy of general application, not a document fabricated for litigation, and that an employee's failure to acquaint herself with it cannot found a cause of action. 9. The 1st Respondent further submitted that the procedural requirements of Section 41 of the Employment Act applies to disciplinary dismissals and not to policy-based retirement. In any event, the Claimant was given advance notice on 11th November, 2023, particularizing her terminal dues, in compliance with the Manual. 10. On the letter dated 13th October, 2023 denying her access to the premises, it was submitted that the letter was addressed to the Chief Security Officer and was a lawful administrative act flowing from the complaints against the Claimant's work ethic. An employer has the right to manage access to its premises, especially in the context of ongoing personnel review. It argued that even if complaints were a contributing factor, this does not render the retirement unlawful. The retirement was grounded in the HR Manual's mandatory retirement age a ground that is lawful, nondiscriminatory, and of general application. 11. It was submitted that the Claimant's reliance on [***Pius Machafu Isindu v Lavington Security Guards Limited [2017] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/225/eng%402017-11-03) is distinguishable, as the case concerning summary dismissal and the burden of proof under Section 47(5) in cases of unfair termination not retirement pursuant to an employment policy. The holding is therefore inapplicable to the facts herein. 12. The 1st Respondent relied on [***James Heather Hayes v African Medical and Research Foundation (AMREF) [2020] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1903/eng%402020-03-13), submitting it as relevant to the present case. 13. On terminal dues, the 1st Respondent submitted that it does not deny the Claimant's entitlement to lawful terminal dues, having computed and offered severance pay, one month's pay in lieu of notice, and outstanding leave pay in the retirement letter. However, the Claimant declined to accept, rendering her present complaint of non-payment disingenuous. 14. It is the 1st Respondent’s submission that the Claimant is not entitled to gratuity/service pay as claimed, as this not being provided for in her contract or the HR Manual. She had conflated contractual service gratuity with statutory severance, which are distinct and cannot be claimed simultaneously. 15. It was further submitted that the Claimant is not entitled to compensatory damages of twelve months' salary, because, as set out above, the termination was not unfair it was a lawful retirement pursuant to policy. Further, [***Nation Media Group Limited v Munene [2025] KECA 114 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/114/eng%402025-01-24), cited by the Claimant, arose from a finding of unfair termination and is inapplicable where retirement is lawful, no award under section 49 of the Employment Act being warranted in such circumstances. 16. On costs, it was submitted that the 1st Respondent has been put to unnecessary expense defending a meritless claim premised on a mischaracterization of a lawful retirement, and that costs ought to be awarded to the 1st Respondent rather than the Claimant. 17. It is the 1st Respondent’s submission that the Claimant's employment ended not through arbitrary dismissal but through the lawful and policy-driven process of retirement. The procedural protections of the Employment Act being designed to guard against arbitrary dismissal and not to bar enforcement of a consistently applied retirement policy, and the 1st Respondent prayed that the claim be dismissed in its entirety. 18. I have examined all the averments and submissions of the parties herein. The employment relationship between the claimant and 1st respondent is not denied. It is however in contention that the 2nd respondent employed the claimant and all the evidence on record point to the fact that the 1st respondent is one who issued the appointment and termination letter of the claimant. Any claim against the 2nd respondent must therefore be dismissed with costs at the earliest stage and which I do accordingly. 19. As concerns the employment relationship with the 1st respondent, the claimant was indeed an employee of the 1st respondent. She was also terminated by the 1st respondent vide a letter of retirement dated 11/11/2023 which informed her that her retirement would be effective 31st December 2023. 20. The claimant exhibited her ID card before court which shows that she was born on 1/1/62 and so as at 31st December 2023, she had attained the formal government retirement age of 60 years. The claimant was however an employee of private company and it is not clear when her retirement was due. There is no evidence adduced by the 1st respondent that she was due for retirement at this age. 21. In the absence of such evidence, it is my position that the claimant was unfairly terminated and without due process and she is therefore entitled to compensation. In view of the abrupt, illegal and unfair termination and given her age where she cannot get another job, I award her 6 months’ salary as compensation for the unfair termination= 6x15,500/- = Kshs 93,000/-. 22. I also award her her terminal dues which I award as service pay equivalent to 15 days for each year worked= Kshs15,500x3x0.5= Kshs 23,250/-. **TOTAL AWARDED = Kshs 116,250/-** less statutory deductions. **Dated, Signed and Delivered virtually at Nairobi this 29th Day of July 2026.** **HELLEN WASILWA** **JUDGE**